The book examines issues of copyright infringement, copyright demand letters, damages in copyright cases and defenses. Parody is an often times misunderstood defense. This chapter used real-life examples to help illustrate what qualifies for the parody defense and what is mere-online bullying.

Lady Ga Ga in a XM Radio interview recently talked about the artist Jeff Koons and Andy Warhol. This chapter also uses those artists to help explain the points. I’d like to dedicate Chapter 10 to
Lady Ga Ga and her Monsters.

CHAPTER 10 WHAT IS PARODY?
PART 2: PARODY V. SATIRE

The terms parody and satire are often tossed around interchangeably in casual conversation, but the two terms have an important distinction when it comes to copyright law.

A parody targets and mimics the original work to make its point, while a satire uses the original work to criticize something other than the original work, usually an aspect of society. Parody, which is directed toward a particular literary or artistic work, is distinguishable from satire, which more broadly addresses the institutions and mores of society.

Courts give preference to parody over satire when analyzing a potential fair use because the parody must use part of the original work in order to comment on it. Many satires do not need to use any part of an original work at all to make the comment or critique they want to make. Parody needs to mimic the original to make its point, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing.

A Modest Proposal by Jonathan Swift

Probably the most famous satire of all time

TIP: A parody must specifically target the original work, and not just its general style, the genre of art it belongs in, or society as a whole.

Complicating the analysis is the fact that many works can be considered both satires and parodies because they criticize both the original work itself and also other external matters in society.

The following case illustrates the distinction between satire and parody. In 1995, Alan Katz and Chris Wrinn wrote and illustrated The Cat NOT in the Hat!, which told the story of the O.J. Simpson double murder trial in rhyming verse. The copyright holder to Dr. Seuss’ work, Dr. Seuss Enterprises, sued for copyright infringement.

Katz responded by filing a declaration that stated The Cat in the Hat was the “object for [his] parody” and the portions of his book that derive from The Cat in the Hat were “necessary to conjure up the original.”

Excerpt fromThe Cat NOT in the Hat!
A happy town
Inside L.A.
Where rich folks play
The day away.
But under the moon
The 12th of June.
Two victims flail
Assault! Assault!
Somebody will go to jail!
Who will it be?
Oh my! Oh me!
……

A plea went out to Rob Shapiro

Can you save the fallen hero?
And Marcia Clark, hooray, hooray
Was called in with a justice play.
A man this famous
Never hires
Lawyers like
Jacoby-Meyers.
When you’re accused of a killing scheme
You need to build a real Dream Team.
Cochran! Cochran!
Doodle-doo
Johnnie, won’t you join the crew?
Cochran! Cochran!
Deedle-dee
The Dream Team needs a victory.

Is this a parody of The Cat in the Hat?

The Cat NOT in the Hat also contained lines such as “One Knife? / Two Knife? / Red Knife / Dead Wife,” which mimics the first line in Dr. Seuss’ One Fish Two Fish Red Fish Blue Fish: “One fish / two fish / red fish / blue fish / old fish / new fish.”

Under the first factor, the court held The Cat NOT in the Hat! simply retold the tale of the O.J. Simpson trial, but did not specifically parody Dr. Seuss’ original work. The court said Katz’ use does broadly mimic Dr. Seuss’ characteristic style, but had no critical bearing on the substance or style of The Cat in the Hat.

The court said that Katz and Wrinn merely used Seuss’ copyrighted material to avoid coming up with something fresh and to get attention. The substance and content of The Cat in the Hat was not “conjured up” by the focus on the murders or the Simpson trial.

Is this fair use?

The original and The alleged infringement

The answer is no. This is not a fair use.

Under the second factor, the court noted that the creativity, imagination and originality embodied in The Cat in the Hat and its central character tilted the scale in Seuss’ favor, but the court also observed that the second factor has typically not been very significant.

Under the third factor Katz and Winn insisted that they chose The Cat in the Hat because of the similarities between the two stories illustrated below:

The Court of Appeals agreed with the District Court that the above explanation was a post-hoc characterization of their work that was “pure shtick” and “completely unconvincing.”
Under the fourth fair use factor the court noted that the good will and reputation associated with Dr. Seuss’ work is substantial, and found that market harm was at least more certain, and market harm could more readily be inferred.

Mimicking the style of Dr. Seuss was not enough to qualify The Cat NOT in the Hat as a parody because it did not specifically target The Cat in the Hat. The court in this case made it clear that a parody must target a specific artistic work that it borrows from.